PETER ASH and REPATRIATION COMMISSION

[2009] AATA 326

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 326

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/2596

VETERANS’ APPEALS DIVISION		)
Re		PETER ASH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Member

Date8 May 2009

PlaceSydney

Decision The tribunal sets aside the decision under review and substitutes a decision that the applicant satisfies all the requirements of subsection 24(1) of the Veterans’ Entitlements Act 1986 for receipt of the special rate of pension.

...................[Sgd]...................

Ms Robin Hunt
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – pension – special rate – “alone” test – war-caused psychiatric condition accepted – applicant’s war-caused psychiatric incapacity alone prevents him from continuing to undertake remunerative work he had been undertaking – shoulder restrictions immaterial to condition that prevent the veteran from working – decision under review set aside – all requirements of s 24(1) of the Veterans’ Entitlements Act 1986 satisfied.

Veterans’ Entitlements Act 1986 ss 13(1)(b), 13(1)(d), 15(1), 19(9), 22, 24(1), 24(2), 28

Baljas v Repatriation Commission [2009] FCA 171

Banovich v Repatriation Commission(1986) 69 ALR 395

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 101 FCR 50

Fox v Repatriation Commission (1997) 45 ALD 317

Leane v Repatriation Commission (2004) 81 ALD 625

Magill v Repatriation Commission [2002] FCA 744

Peacock and Repatriation Commission (2004) 40 AAR 143

Repatriation Commission v Hayes (1982) 64 FLR 423

Repatriation Commission v Hendy (2002) 76 ALD 47

Sheehy v Repatriation Commission(1996) 66 FCR 569

Starcevich v Repatriation Commission (1987) 18 FCR 221

REASONS FOR DECISION

8 May 2009 Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Member        

introduction

1. Mr Ash seeks review of a decision refusing to increase his disability pension to the special rate. The reviewable decision is that Mr Ash does not meet all the requirements under section 24 of the Veterans’ Entitlements Act 1986 (‘the Act’) and, in particular, his incapacity to work is not caused by accepted injuries or diseases alone. 

2. He was born on 12 October 1944, making him under the age of 65 when he applied for an increase in his pension. The parties agree Mr Ash meets preliminary requirements for disability pension at the special rate. He served in the Australian Army and rendered eligible service and operational service in accordance with the Act. From 3 December 1964 to 6 June 1965 and again, from 14 September 1965 to 8 September 1966, Mr Ash rendered operational service. His period of service from 7 December 1972 to 22 August 1985 is recognised as eligible defence service.

3.      Mr Ash suffered injuries during service and the respondent accepts that he is entitled to receive a pension in respect to cervical spondylosis, lumbar spondylosis, post traumatic stress disorder (‘PTSD’), chronic obstructive airways disease, grover’s disease, bilateral sensorineural hearing loss and major depression. The respondent’s records show that the Commission accepted Mr Ash’s claim for major depression on 29 September 2005,…